U.S. v. Foster

• Citation: 507 F.3d 233
• Decision Date: 13 November 2007
• Docket Number: No. 04-4619.,No. 04-4620.,No. 04-4618.,04-4618.,04-4619.,04-4620.
• Parties: UNITED STATES of America, Plaintiff-Appellee, v. Aaron Demarco FOSTER, a/k/a Turk, a/k/a Ace, a/k/a Little Aaron, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Keon Moses, a/k/a Black, Defendant-Appellant. United States of America, Plaintiff-Appellee, v. Michael Lafayette Taylor, a/k/a Mike Mumbles, Defendant-Appellant.
• Court: United States Courts of Appeals. United States Court of Appeals (4th Circuit)

507 F.3d 233

UNITED STATES of America, Plaintiff-Appellee, v. Aaron Demarco FOSTER, a/k/a Turk, a/k/a Ace, a/k/a Little Aaron, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Keon Moses, a/k/a Black, Defendant-Appellant.

United States of America, Plaintiff-Appellee, v. Michael Lafayette Taylor, a/k/a Mike Mumbles, Defendant-Appellant.

No. 04-4618.

No. 04-4619.

No. 04-4620.

United States Court of Appeals, Fourth Circuit.

Argued: September 26, 2007.

Decided: November 13, 2007.

ARGUED: Robert Whelen Biddle, Nathans & Biddle, L.L.P., Baltimore, Maryland; Arcangelo Michael Tuminelli, Baltimore, Maryland, for Appellants. Stephanie Agli Gallagher, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee. ON BRIEF: Robert H. Waldman, Annapolis, Maryland, for Appellant Michael Lafayette Taylor; Teresa Whalen, Silver Spring, Maryland, William B. Purpura, Baltimore, Maryland, for Appellant Aaron Demarco Foster. Rod J. Rosenstein, United States Attorney, Andrea L. Smith, Assistant United States Attorney, Office of the United States Attorney, Baltimore, Maryland, for Appellee.

Before WILKINSON, Circuit Judge, HAMILTON, Senior Circuit Judge, and T.S. ELLIS, III, Senior United States District Judge for the Eastern District of Virginia, sitting by designation.

Affirmed by published opinion. Senior Judge HAMILTON wrote the opinion, in which Judge WILKINSON and Senior Judge ELLIS joined.

OPINION

HAMILTON, Senior Circuit Judge:

These are the consolidated appeals of three defendants, Keon Moses, Michael Taylor, and Aaron Foster, who were tried, convicted, and sentenced for conspiracy to possess with the intent to distribute and to distribute fifty grams or more of cocaine base (crack), 21 U.S.C. § 846, and for various related substantive offenses. For the reasons stated below, we affirm the district court's judgments.

I

A

This case concerns a drug conspiracy taking place within an approximately six-square block neighborhood in West Baltimore, Maryland known as "Lexington Terrace." (J.A. 329). According to the government's evidence produced at trial, between 1999 and late 2002, rampant drug dealing took place in Lexington Terrace and numerous acts of violence were performed in the neighborhood to protect this drug dealing activity.

Put succinctly, the Lexington Terrace neighborhood was an open-air drug market in which substantial quantities of crack were sold on a daily basis during the charged time frame. All of the dealers in the neighborhood had grown up in Lexington Terrace or worked with a person who had grown up there. Some dealers belonged to a particular drug distribution gang within the neighborhood, while others did not. Moreover, dealers often bore tattoos, which recognized their relationship to the neighborhood.

In some respects, Lexington Terrace dealers worked independent of other dealers. For example, different dealers often had different sources of supply. Some dealers sold their drugs in a distinctive color-top vial, which allowed users to associate the color-top of the vial with the quality of the product. Moreover, dealers competed with other dealers for business; thus, when a vehicle approached with somebody looking for drugs, multiple dealers, perhaps from multiple gangs, approached the vehicle trying to consummate a sale.

In other respects, the Lexington Terrace drug dealers worked in consort with each other. They shared stash houses and firearms. They respected a user's selection of a particular dealer, which allowed numerous dealers to operate in the area, even dealers not associated with a gang. A dealer's decision to leave a drug dealing gang generally was respected, and the departing dealer enjoyed the freedom to deal drugs on his own. Neighborhood dealers also made change for each other on occasion. For their mutual aid and protection, Lexington Terrace dealers alerted each other to the presence of law enforcement authorities and jointly controlled the area, through the use of intimidation and violence, to the exclusion of others. Dealers who experienced legal troubles often received financial assistance from other neighborhood dealers. For example, a dealer's legal expenses might be paid by another dealer or a dealer incarcerated might receive some money to spend in prison. Dealers returning to the neighborhood from a prison stint often received drugs on the front to sell from other dealers which allowed the newly-released dealer to reestablish himself financially.

This peaceful coexistence between the neighborhood dealers worked to the benefit of both users and the neighborhood dealers. Users enjoyed the regular availability of drugs in the neighborhood, while the dealers were able to thrive financially with steady business and little violence amongst themselves.

It was within this environment that Moses, Taylor, and Foster sold substantial quantities of crack. Foster was from the Lexington Terrace neighborhood and had a "Terrace Life" tattoo on his right forearm. (J.A. 453). Several witnesses testified that they had purchased crack from Foster. Moreover, Aaron Butler, a neighborhood dealer, testified that, in 1999, Foster was selling grey-top vials of crack and was using Monique Andrews's house as his stashhouse. Butler further testified that, in 2000, he and Foster were selling crack together. Another witness testified that Foster was at times in charge of supervising his gang's drug activity. Foster was incarcerated in July 2000, and, upon his release in October 2001, he returned to Lexington Terrace and began dealing crack again.

Moses also grew up in the Lexington Terrace neighborhood. Butler testified that, in 1999, Moses was selling crack with Brandon Allison, using, like Foster, Monique Andrews's house as a stashhouse. Moses was arrested at that house on June 15, 1999, with the keys to the house in his pocket.

Following a period of incarceration, Moses was released in August 2001 and immediately began selling purple-top vials of crack with Taylor. Moses was stopped in his vehicle by a law enforcement officer in September 2001 and had 300 empty purple-top vials in his car. Greg Spain was fronting narcotics to Moses in August/September 2001 because Moses had just been released from prison.

Although he was eventually incarcerated on state charges of committing a double murder, Moses remained a participating member of the conspiracy. From jail, he wrote a letter to Taylor instructing Taylor to kill one of the witnesses ready to testify against him.

Taylor grew up in the Lexington Terrace neighborhood and had Lexington Terrace tattoos. In mid to late 2001, Taylor was selling purple-top vials of crack with Moses. Taylor also gave money to Moses while Moses was on the run after the double homicide. At various times, Taylor sold crack and shared stashhouses with other Lexington Terrace dealers.

In January 2002, after he turned eighteen-years old, Taylor's participation in the drug conspiracy began to escalate.¹ He began dealing with Brandon Allison, another Lexington Terrace dealer. That same month, Taylor was arrested in two house raids at a stashhouse owned by Pamela Mack and shared by Lexington Terrace dealers. In one of the raids, Taylor's fingerprint was found on a gun recovered at the residence. Taylor later admitted to law enforcement authorities that he was a drug dealer in the Lexington Terrace neighborhood.

In addition to each defendants' extensive drug dealing activities, the government's case focused on related crimes of violence. The first of these occurred on September 23, 2001 at 303 North Calhoun Street in Baltimore, in the basement of a row house owned by Charles Brockington III's grandmother. On that day, Moses and Taylor, accompanied by Marcus Baskerville,² killed Gregory Spain and Ronald Harris, and attempted to kill Brockington.

Spain, Harris, and Brockington were a group of drug dealers in a neighborhood close to Lexington Terrace. Moses had been supplied by Spain since Moses's release from prison in August 2001. Moses and Spain eventually had a falling out, so Moses decided to steal Spain's stash, with the help of Taylor and Baskerville.

Moses, Taylor, and Baskerville donned masks, bandanas, and caps, and went to Brockington's on the day in question, where they found Brockington in bed. Brockington lived in the basement of his grand-mother's house, and the front door was usually unlocked. Spain, Harris, Robert "Snoop" McManus, and Samuel Wilder usually came around every day, woke Brockington, and played video games and hung out. On the day of the murders, Brockington heard what he believed were his friends entering the house and coming downstairs. He awoke to three armed, masked men surrounding his bed. The assailants demanded drugs, money, and firearms, and kept asking for Spain.

Spain eventually arrived as expected, could not get in, and started shouting at the front door. Moses and Taylor took Brockington upstairs to open the door. Brockington tried to tell Spain with his eyes that there was a problem, but Moses grabbed Spain and pulled him inside. All four went back downstairs, leaving the door unlocked. Harris then showed up at the house and walked right into the scene in the basement.

Thereafter, Moses took Brockington outside to a waiting vehicle and drove him to the location where the drugs were supposedly located. Taylor and Baskerville were left guarding Harris and Spain. When Moses learned that no drugs were accessible at the other location, Moses brought Brockington back to the house on North Calhoun Street. Moses yelled for someone to open the door, and Taylor, leaving Baskerville with Spain and Harris, went to answer the door.

Brockington recalled Taylor opening the door and then hearing the sound of a single shot coming from the basement just as they got inside the front door. Taylor had his firearm in one hand and pulled Brockington down the basement steps, by...